Brown v Bluett
[2013] WASC 189
•14 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BROWN -v- BLUETT [2013] WASC 189
CORAM: ALLANSON J
HEARD: 14 MAY 2013
DELIVERED : 14 MAY 2013
FILE NO/S: SJA 1014 of 2013
BETWEEN: BEN RALPH BROWN
Appellant
AND
DANIEL JOHN BLUETT
First RespondentTRYSTAN PHILIP EDWARD GAUSDEN
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE L J ATKINS
File No :WU 324 of 2012, WU 325 of 2012, WU 347 of 2012, WU 348 of 2012
Catchwords:
Criminal law - Sentencing - Aggravated assault and repeated breach of restraining order - Operation of Sentencing Act 1995 (WA) s 9AA - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant: Mr D D Brunello
First Respondent : Mr L M Fox
Second Respondent : Mr L M Fox
Solicitors:
Appellant: Aboriginal Legal Service (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Baudoeuf v Venning [2010] WASC 322
Cullen v Rowlings [2009] WASC 80
Forkin v State of Western Australia [2013] WASCA 51
Looty v Jacques [2010] WASC 78
Messiha v Plaucs [2012] WASC 63
ALLANSON J: On 8 January 2013 the appellant, Ben Ralph Brown, was sentenced for four breaches of the criminal law:
1.on 30 August 2012 he unlawfully assaulted Vera Lynne Anderson and thereby did her bodily harm in circumstances of aggravation;
2.on 30 August 2012 he breached a violence restraining order;
3.between 8 September and 11 September 2012 he again breached that violence restraining order; and
4.between 12 September and 19 September 2012 he again breached the violence restraining order.
Mr Brown pleaded guilty to all of these offences.
The facts in short are these:
On 9 May 2012, a violence restraining order was issued with conditions which included prohibiting Mr Brown from communicating or attempting to communicate with Ms Anderson, from remaining on premises where she lived or worked and from remaining within 10 m of her.
The first breach of the restraining order was committed when Mr Brown attended a Native Title meeting on 30 August 2012, where he knew Ms Anderson would also be and, while there, he talked to her and stayed awhile in her presence. On 30 August 2012, Mr Brown assaulted Ms Anderson by hitting her on the back of the head with a jaffle iron. The blow caused a cut that had to be medically glued and Ms Anderson also suffered bruising and abrasions to her back and shoulder.
Between 8 and 11 September 2012, Mr Brown went to Ms Anderson's house and persuaded her to take him to Meekatharra in her car where she spent three nights with him. While there he tried to persuade her to withdraw the charges against him to the effect that she went to the Wiluna police station to do just that. That was on 11 September.
Finally between 12 and 19 September 2012 Mr Brown again breached the order by ringing Ms Anderson from his mobile phone on 52 occasions, 22 of which were missed calls, and also on 15 September by persuading her to drive to Meekatharra to pick him up and take him to Bondini Reserve near Wiluna so that he could comply with his bail conditions. Ms Anderson remained with him at Bondini Reserve for about four days.
The magistrate rightly apprehended that the course of offending between 30 August and 19 September was very serious. Mr Brown persistently breached the violence restraining order. On only one of those occasions did he actually assault Ms Anderson but the other breaches of the restraining order were still serious and in relation to each case, the magistrate properly said that Mr Brown totally disregarded court orders that had been placed upon him in order to protect Ms Anderson.
Because Mr Brown had pleaded guilty immediately, the magistrate determined he ought to be given full credit for those pleas, the maximum of 25% as provided by s 9AA of the Sentencing Act 1995 (WA). Her Honour said this:
I'm able to give you full credit for your guilty pleas, but that is up to a maximum of 25 per cent of the terms of imprisonment open on each charge. As far as the breach of violence restraining order is concerned, the maximum penalty open to the court is two years' imprisonment. For the aggravated assault occasioning bodily harm, the maximum imprisonment is three years' imprisonment. Now, I have to consider when deciding what to place upon you the overall effect of any sentence of imprisonment that will be placed on you and I have to make sure that that doesn't destroy all the progress that you made prior to this particular offending, …
So what I'm doing is, I'm giving you the full per centage allowance that I'm allowed in relation to each of those charges. That is a full 25 per cent.
Her Honour then imposed a period of 27 months for the aggravated assault. That is the maximum sentence which could be imposed by a magistrate for that offence less 25%. On each of the breaches of a violence restraining order where the maximum penalty was imprisonment for 2 years, she imposed 18 months' imprisonment. The sentences for breaches of the violence restraining orders were ordered to run concurrently with the imprisonment on the assault charge producing a head sentence of 27 months' imprisonment. The sentence was backdated to 20 September when Mr Brown was taken into custody and the magistrate declared that he was eligible for parole.
The application for leave to appeal was filed just a couple of days out of time. On 12 August 2013 Hall J made orders extending time and granting leave to appeal.
There are two grounds of appeal:
1.The learned sentencing Magistrate erred in law in the application of s 9AA of the Sentencing Act 1995 (WA), in particular by construing it as requiring:
(a)A (potentially) significant increase in the sentence that would otherwise have been imposed
(b)A starting point being the maximum penalty open to the court
2.The learned sentencing Magistrate erred by imposing a sentence that was manifestly excessive in all the circumstances, in particular having regard to:
(i)Plea of guilty
(ii)Remorse
(iii)Employment and progress towards rehabilitation in the community
(iv)The factual circumstances of each offence.
The respondent concedes that the magistrate's application of s 9AA was erroneous and, further, that the error resulted in a sentence beyond the range of sentences customarily imposed for offences of this type. The respondent concedes that the appeal ought to be allowed, the sentences set aside and the appellant resentenced and I am satisfied that that is right.
Section 9AA provides:
9AA. Plea of guilty, sentence may be reduced in case of
(1)In this section ‑
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if ‑
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The magistrate's approach is not the intended operation of s 9AA: see Forkin v State of Western Australia [2013] WASCA 51 [20] - [23]. Rather than applying the discount for the plea of guilty to 'the maximum penalty open to the court' for each offence, her Honour was required to determine the appropriate head sentence defined in s 9AA as the sentence the court would have imposed if Mr Brown had been found guilty after a plea of not guilty and there were no mitigating factors. That is not necessarily the maximum penalty that the court may impose for that offence.
Fixing an appropriate head sentence for each offence requires consideration of the maximum sentence prescribed by the law for the offence, the standards of sentencing customarily observed with respect to the offence and the place which Mr Brown's criminal conduct occupies in the scale of the seriousness of offences of that type. The parties have referred the court to recent authorities which consider the principles which inform the task of sentencing and the range of sentences imposed for offending of this kind. I refer to particularly to Messiha v Plaucs [2012] WASC 63 [43] - [53], Baudoeuf v Venning [2010] WASC 322 [50]; Cullen v Rowlings [2009] WASC 80; Looty v Jacques [2010] WASC 78. Despite the undeniable seriousness of Mr Brown's conduct, the head sentence of the maximum available for each offence is outside the range of a sound exercise of the sentencing discretion. As a result the penalty imposed is excessive and that is all that really needs to be said in order to allow the appeal. Mr Brown should be resentenced.
I have already given a short outline of the facts. The appellant does not argue for a sentence other than one of immediate imprisonment and I am satisfied that is the only penalty that is appropriate to the overall offending on this occasion. The law is limited in the manner in which it can respond to domestic violence. One important part of that response is by the issue of violence restraining orders. It is essential that those orders are not ignored. When they are repeatedly breached, the need for general and individual deterrence will ordinarily outweigh subjective and other mitigating considerations.
The combination here of repeated violations of a restraining order and one act of significant violence calls for a penalty of imprisonment. The offence of assault occasioning bodily hard was by a blow to Ms Anderson's head and was committed using an object which was capable of causing serious injury. Fortunately it did not. But within the range of assaults causing bodily harm and quite apart from the circumstance of aggravation, this is a serious example.
The maximum period of imprisonment that can be imposed for the offence when it is committed in circumstances of aggravation is 7 years under s 317 of the Criminal Code (WA). The penalty available to the magistrate was 3 years' imprisonment. In my opinion a head sentence, as that term is used in s 9AA of the Sentencing Act, of 18 months' imprisonment is an appropriate penalty.
The breaches of restraining order relied on did not themselves involve acts of violence. It is, however, particularly serious that in each of the last two offences Mr Brown was breaching the order soon after appearing in court on the first breach. The period of offending in the latest offence began on 12 September 2012, the day he pleaded guilty to the earliest. The later offences are, in my view, more serious and sentences of imprisonment of 6 months on each should be imposed.
The sentences for the breaches of the restraining order might properly be cumulative on each other but because Mr Brown is to be imprisoned for the assault, the sentences on each breach of the restraining order will be concurrent with each other and with the sentence imposed for the aggravated assault.
There are some personal matters that are mitigating. Mr Brown cannot claim the benefit of good character due to his record of offending. But there was material before the magistrate to the effect that he had shown a commitment to turning his life around by giving up alcohol, maintaining employment and taking on responsibility for family members and the responsibility as a traditional owner for his country.
The magistrate referred to the need to ensure that the sentence imposed did not destroy the progress that Mr Brown had made. While I will further reduce the sentence for these personal matters, their mitigating effect is limited by the nature of the offending and the need to emphasise the importance of complying with a restraining order.
Taking all of those matters into account, after allowing the full benefit of the 25% reduction under s 9AA, the sentence I impose for the offence of aggravated assault causing bodily harm is imprisonment for 12 months. I would impose a sentence of imprisonment for 3 months for the earliest breach of the restraining order, that is, WU324 of 2012 and 6 months on each of the later breaches. The sentences for breach of the restraining order will be concurrent with each other and with the penalty for the assault, leaving a head sentence of 12 months. The terms of imprisonment are to be served immediately.
The sentence should commence from 20 September 2012 when Mr Brown went into custody and there is no reason to depart from the magistrate's decision that he should be eligible for parole.
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